Lawmakers say Oregon ‘primed’ for lawsuit after scathing American Bar Association report

By Conrad Wilson (OPB)
Jan. 22, 2022 4:48 p.m.

Oregon’s public defense system has less than one-third of the public defenders required to meet current caseloads, according to an American Bar Association report publicly released Friday.

The report found Oregon’s Office of Public Defense Services requires 1,888 public defenders, but only has the equivalent of 592 public defenders — a 69% deficit.

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“At current caseloads, [the Office of Public Defense Services] simply is unable to adequately represent individuals in adult criminal and juvenile cases,” the two-year study found.

Public defenders represent people who cannot afford their own attorneys. The Sixth Amendment of the U.S. Constitution requires criminal defendants to receive adequate representation. Public defenders are required to study the case and charges against their clients, and perform their own investigation of the case before recommending a plea.

The ABA report is just the latest indicators that Oregon’s public defense system is failing to meet its constitutional requirements. A 2019 report by the Sixth Amendment Center found Oregon’s public defense system was essentially unconstitutional. For the last several months, some criminal defendants in counties such as Lane, Washington and Multnomah counties have been in custody without an attorney because of a shortage of public defenders.

“It’s a civil rights crisis that’s been in the making for a while,” said Bobbin Singh, executive director of the Oregon Justice Resource Center. “All three branches of government have been complicit in this.”

An exterior of a window of a modern building.

A view of the Multnomah County Courthouse

Courtney Sherwood / OPB

Overloaded public defense systems can harm defendants and lead to outcomes that damage the overall credibility of the justice system, said Carl Macpherson, executive director of Metropolitan Public Defender, a nonprofit public defense firm that provides services in Multnomah and Washington counties.

“What happens in an overloaded, underfunded system, people triage and cut corners,” he said. “It can lead to wrongful convictions because people miss things”

Macpherson described the American Bar Association report as an overdue “wake up call for the state.”

Some lawmakers predicted future consequences for the state, ones beyond not following the Constitution.

“We are primed for having a lawsuit filed against the state for not adequately providing legal services for those who have the right to them,” said Sen. Floyd Prozanski, D-Eugene, who chairs the Senate Judiciary Committee.

“And what that means is that you could see verdicts overturned because of inadequate defense. You could also see where the court could in fact impose conditions on the state to come in compliance. Either way, it’s not good. And to be very frank, it is something that we, the Legislature, have an obligation to address.”

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State Sen. Floyd Prozanski, D-Central Lane and Northern Douglas counties, in the Oregon Senate on Monday, Jan. 14, 2019, in Salem, Ore.

State Sen. Floyd Prozanski, D-Central Lane and Northern Douglas counties, in the Oregon Senate on Monday, Jan. 14, 2019, in Salem, Ore.

Bradley W. Parks / OPB

The way Oregon attempts to meet those obligations lacks transparency, according to the ABA’s report.

At the trial level, Oregon contracts out its public defense system to nonprofits and private attorneys. OPDS’s data about its contracts contains inconsistencies and inaccuracies.

“The OPDS contracting system, which includes over 100 contractors that vary significantly in both size and organizational structure, imposes challenges to building and implementing a unified case management system and other data collection mechanisms,” the American Bar Association found. “OPDS should be able to track which individual attorney is assigned to which cases to verify both qualifications and caseloads.”

During a meeting with ABA officials Thursday, OPDS said it would go to the Legislature next month with a series of funding requests to increase public defender pay, with the hopes of retaining attorneys. OPDS will also request technology upgrades to better track contracts and how cases are managed.

Rep. Janelle Bynum, D-Clackamas, attends an Oregon House session on Monday, April 29, 2019, in Salem.

Rep. Janelle Bynum, D-Clackamas, attends an Oregon House session on Monday, April 29, 2019, in Salem.

Laurie Isola / OPB

Rep. Janelle Bynum, D-Clackamas, who chairs the House Judiciary Committee, said a weak public defense system affects entire families and society at large. She said it’s not clear to her “what’s really going on” at OPDS and what needs to be addressed first.

“I can’t tell if it’s money. I can’t tell if it’s prior mismanagement. I can’t tell if it’s the rules that the Legislature set up that make it virtually impossible to be successful,” Bynum said. “It’s really hard to tell without understanding which lever should be pressed on first or with the most pressure.”

That sentiment was acknowledged Thursday, during OPDS’s meeting about the ABA report.

“We have a severe credibility gap with the Legislature and [Legislative Fiscal Office],” said Public Defense Service Commission Chair Per Ramfjord, who is also a partner at law firm Stoel Rives. “We are perceived as not having any information about what we spend, not keeping track of it, not doing a very good job with it.”

Despite the challenges, many leaders across state government and the legal community say they want to see the state’s public defense system improve.

“The work our public defenders do to ensure eligible individuals have timely access to legal services is essential,” Oregon Attorney General Ellen Rosenblum said in a statement. “I support adequate funding to address the pressing issues highlighted in the ABA report, as well as an update to the decades old national caseload standards for public defenders.”

Oregon Supreme Court Chief Justice Martha Walter said in a statement said the Legislature needs to address the public defense shortage so constitutional rights are not “an illusory promise.”

Nationwide, public defense is under-resourced, the ABA has found in other state studies. Those studies will contribute toward a new national case-load standard set to be announced later this year, replacing decades-old guidelines.

Singh said a strong public defense system is a prophylactic against other violations.

“Public defense is a racial justice issue,” he said. “It’s an equity issue.”

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